BIA Slaps IJ for Disobedience in 212(c) Remand: Matter of X- (unpub.)

Matter of X-, July 1, 2016, unpub.- "This matter was last before the Board on July 20, 2015, when we reversed the decision of the Immigration Judge denying the respondent's application for a waiver of inadmissibility under section 212(c) of the Immigration Act, 8 U,S.C. § 1182(c), in the exercise of discretion. The record was remanded to the Immigration Judge pursuant to 8 C.F.R. § 1003.1(d)(6) for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, to conduct further proceedings if necessary, and for the Immigration Judge to enter an order granting the relief sought by the respondent as provided under 8 C.F.R. § 1003.47(h). The Immigration Judge has now certified and administratively returned the record to the Board.

The Immigration Judge's certification order notes that the required background and security checks were completed for the respondent on remand. However, the Immigration Judge did not enter an order granting the respondent's application for a section 212(c) waiver. The order merely states that case is being returned to the Board for the entry of a final order, and sets forth the Immigration Judge's disagreement with the Board's reversal of his decision by "merely substitut[ing] its own discretionary judgment for that of the Immigration Judge" (LJ. at 2). 

As acknowledged by the Immigration judge, the Board is empowered to review matters of discretion de novo, and it has done so in this case. The Board's decision to reweigh the evidence and arrive at a different conclusion in matters of discretion is not subject to review by the Immigration Court, and no aspect of an order of remand resulting from that decision may be disregarded. Inasmuch as the Immigration Judge has failed to comply with the regulations and the Board's prior order in this matter, we must again remand the record for further action.

Accordingly, the following order will be entered.

ORDER: Pursuant to 8 C.F.R. § 1003.1(d)(6) and the Board's prior order in this matter, the record is remanded to the Immigration Judge to allow the Department of Homeland Security the opportunity to update identity, law enforcement, or security investigations or examinations, if necessary, and the Immigration Judge is directed to enter an order granting the relief sought by' the respondent as provided under 8 C.F.R. § 1003.47(h)."

[Hats off to W. Randall Stroud!]